9th Circuit Upholds Terrorist Conviction

(CN) – The 9th Circuit narrowly upheld the conviction of a U.S.-born Pakistani who attended a terrorist training camp and was believed to have been awaiting orders to carry out an attack in the United States. In a 2-1 ruling Wednesday, the federal appellate panel in San Francisco rejected Hamid Hayat’s bid to overturn his 2006 convictions for providing material support to terrorists and lying to government officials. Hayat, 29, was born in the United States and lived here until he was 7, and then lived with his grandparents in Pakistan until he was 18. In 2000 he returned to his parents’ house in Lodi, Calif., the site of a suspected terrorist cell. There, in conversations recorded by an FBI informant, he spoke of his disdain for America and his plans to attend a terrorist training camp in Pakistan, according to the ruling. In 2003, he went to Pakistan with his family for two years. He continued to talk to the informant over the phone, and boasted about giving money to Sipah-e-Sahaba, a group that Pakistan has declared a terrorist organization. When Hayat tried to reenter the United States in 2005, his return flight was diverted to Japan because his name appeared on the federal “No Fly” list. He was eventually cleared to fly to San Francisco, but five days after arriving, FBI agents took him to Sacramento for further questioning. He initially denied having attended a terrorist training camp, but later admitted to having attended a camp where he was trained for jihad and learned to use a pistol and rifle to kill American troops. At the camp in Pakistan, he was told to expect to receive orders to carry out a terrorist attack in the United States, according to his confession. The FBI arrested him at the end of the interviews, and charged him with one count of providing material support to terrorists and three counts of making false statements to the FBI. A jury found him guilty on all four counts, and he was sentenced to 24 years in federal prison. Hayat launched a three-pronged appeal, claiming the jury’s foreman was biased against him; the defense should have been allowed to further cross-examine the government informant; and the trial judge unfairly allowed expert testimony for the government while excluding mitigating testimony for the defense. The court’s majority found “plausible” non-biased explanations for the jury foreman’s comments, including a remark that “they” — meaning Muslims or Pakistanis — “all look alike … [i]f you put them in the same costume.” It also found no abuses of discretion or “plain error” in what the trial judge allowed or omitted at trial. But the case generated a 25-page dissent from Judge A. Wallace Tashima, who disagreed with virtually every finding in the majority opinion. “This case is a stark demonstration of the unsettling and untoward consequences of the government’s use of anticipatory prosecution as a weapon in the ‘war on terrorism,” Tashima wrote, criticizing a strategy Hayat himself never challenged. Tashima said courts have a duty to ensure justice is served, not punish someone for a crime he has yet to commit. “Scrupulous fulfillment of that duty is all the more critical when the government asks a jury to deprive a man of his liberty largely based on dire, but vague, predictions that he might commit unspecified crimes in the future,” he wrote. He said he would have overturned the convictions and granted Hayat a new trial.